01A44919
11-08-2004
Michele Murray, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michele Murray v. United States Postal Service
01A44919
11-08-04
.
Michele Murray,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44919
Agency No. 1F-904-0010-03
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. Complainant contacted an equal employment
opportunity (EEO) counselor on October 16, 2002, alleging that she was
subjected to discrimination on the bases of race (African-American)
and disability when on May 14, 2002, the agency reassigned complainant
to a different schedule. EEOC Regulation 29 C.F.R. � 1614.107(a)(2)
requires dismissal of a complaint or a portion of a complaint which fails
to comply with the time limitations set forth in 29 C.F.R. � 1614.105(a).
Because complainant did not contact an EEO counselor within the 45-day
period, the agency dismissed the complaint for failure to timely contact
an EEO counselor.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five
(45) day limitation period is triggered. Thus, the time limitation is
not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent. McLoughlin v. Department of the Treasury, EEOC Request
No. 05A01093 (Apr. 24, 2003).
In explanation of why she did not contact the EEO counselor within
the 45-day time limit, complainant stated that she initially filed a
grievance over the same matter, and was mis-informed by the union that
she could not simultaneously file both a grievance and an EEO complaint.
Here it appears that complainant had a reasonable suspicion that
discrimination occurred at the time of the event, but chose not to contact
an EEO counselor at that time. The time limitation for contacting an EEO
Counselor will not be tolled while a complainant pursues his complaint
in another venue, such as in a grievance procedure or agency internal
affairs process, or extended if that venue proves to be unsuccessful.
McLoughlin, supra.
CONCLUSION
For the reasons set out above, the Commission affirms the agency's
final decision to dismiss the complaint for failure to comply with the
timeliness requirements of 29 C.F.R. � 1614.105.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___11-08-04_______________
Date